Filed 2/25/16 P. v. Harlow CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C073330
v. (Super. Ct. No. 12F03221)
STEVEN FRANK HARLOW,
Defendant and Appellant.
Defendant Steven Frank Harlow began sexually abusing his stepdaughter when
she was 11 years old. A jury convicted him on 12 counts of lewd and lascivious acts with
a child under the age of 14 years, three counts of lewd and lascivious acts with a child
who was 14 years of age, and one count of using a minor to perform prohibited acts.
Defendant now contends the trial court erred in admitting (1) uncharged sexual
conduct evidence under Evidence Code sections 1108 and 352; (2) expert testimony
concerning child sexual abuse accommodation syndrome (CSAAS); and (3) the CSAAS
expert’s response to the prosecutor’s hypothetical question, which tracked the facts in this
case and improperly suggested the minor had been sexually abused.
1
We conclude (1) defendant’s claims regarding Evidence Code sections 1108 and
352 lack merit; (2) even if defendant did not forfeit his claims regarding the admission of
CSAAS evidence, the claims fail on the merits; and (3) although the prosecutor’s
hypothetical question exceeded the permissible limits for expert testimony on the subject,
no prejudice resulted from admission of the evidence because the jury could not
reasonably understand that the expert was providing an opinion about whether the minor
was sexually abused.
We will affirm the judgment.
BACKGROUND
Defendant married the minor’s mother when the minor was two years old. When
she was 15 years old, the minor told her mother, during a heated argument, that defendant
had been molesting her for four years. That was the first time the minor told anyone
about the abuse.
The mother contacted the police and defendant was placed under arrest.
The mother told police she saw defendant looking at images of naked
prepubescent girls. At a subsequent interview, the mother said she confronted defendant
about seeing child pornography on his computer and defendant did not deny it.
According to the mother, defendant said he found prepubescent girls attractive looking.
Police interviewed the minor three times. The minor provided more details about
the sexual abuse each time police interviewed her, but she did not recant her accusations
against defendant. There were inconsistencies in the minor’s accounts and she could not
specifically remember what happened during each incident of molestation.
Police searched defendant’s home and seized a white massager, which the minor
told detectives defendant had used on her. Police also seized defendant’s red Samsung
cell phone, a computer, a digital camera, and three DVDs containing adult pornography.
No data could be retrieved from defendant’s cell phone. There was evidence on the
computer that someone had visited websites containing sexually explicit materials, and
2
one website possibly contained child pornography, but there was no child pornography
on the computer or the digital camera. The computer contained a program called
Evidence Eliminator, which can be used to permanently erase files from the computer
and can be set to automatically run at specified times.
At trial the minor testified defendant began to molest her when she was 11 years
old. The first act of molestation occurred in “the downstairs” room, where the family
kept a computer that defendant used primarily. Defendant showed the minor
pornography on the computer while she sat on his lap, and defendant touched the minor’s
vaginal area with his hand, under the minor’s clothes. Defendant masturbated while
touching the minor. After the first incident, defendant touched the minor in the same
manner multiple times a month. Defendant ejaculated sometimes.
Defendant began molesting the minor in the living room when she was 11 or 12
years old. The acts in the living room occurred multiple times a month. The minor
described a typical molest incident in the living room as involving defendant rubbing her
stomach, then moving his hand to her breasts or her vaginal area, sometimes over her
clothing but most of the time under her clothing. The minor said defendant may have put
his fingers inside her vagina a couple of times. Defendant last touched the minor’s
vaginal area and breasts about a week before his arrest.
Defendant put a massager on the minor’s vaginal area more than once in the living
room. He masturbated while using the massager on the minor. Sometimes defendant
ejaculated.
Defendant began molesting the minor in her bedroom when she was about 11 or
12 years old and continued until she was 15 years old. The minor described an average
incident of molestation in her bedroom as follows: Defendant entered her bedroom after
everyone else went to bed. He rubbed the minor’s back or stomach, then her breasts or
vaginal area. He ejaculated during one of these night visits. He molested the minor in
her bedroom about seven or eight times a month.
3
Defendant also took photographs of the minor in her bedroom on more than one
occasion. The minor agreed to go to her room with defendant to have her photographs
taken because she was scared to say no, even though defendant never threatened her or
instructed her not to tell anyone. Defendant used his red cell phone or a black and silver
camera to take the photographs. The minor was naked in most of the photographs.
Defendant instructed the minor to get on her hands and knees for some of the
photographs. He masturbated sometimes while taking the photographs. He ejaculated
five times while taking photographs of the minor. He showed the minor some of the
photographs he had taken of her on his computer.1 The photographs showed the minor’s
vagina, butt, and bare breasts. Defendant stopped taking photographs of the minor when
she was about 14 years old.
The minor identified People’s exhibit number 16, which police recovered from
defendant’s computer, as a photograph focusing on her butt. The photograph was taken
with a Samsung SCH-U450 device.
The minor testified everything she had described to the jury was true. She said she
loved defendant despite what he was doing to her. She never tried to avoid him. She
hoped he would change. She maintained she still loved and missed defendant.
The minor’s mother testified she saw defendant rub the minor’s back and saw the
minor sitting on defendant’s lap watching something on the computer, but she never saw
defendant do anything that made her suspect he was molesting the minor. According to
the mother, the minor never appeared afraid of defendant and never seemed
uncomfortable or afraid of going to her bedroom when defendant was at home.
The mother testified she lied to police about seeing child pornography on the
family’s old computer. She admitted she was angry with defendant and wanted to hurt
1 The minor said defendant saved the photographs he took of her in a file named “Innie.”
Police searched for that file on defendant’s computer but did not locate it.
4
him. She also said she was not thinking clearly at the time police interviewed her. The
mother said she never saw child pornography on defendant’s computer, and she never
heard defendant say he found prepubescent girls attractive. She admitted she still loved
defendant and wanted him released.
The prosecutor played audio recordings of the mother’s statements to police
during the trial. The mother acknowledged the voice on the recordings belonged to her.
She agreed she sounded calm in the recorded interviews, and it sounded like she took the
time to think things through before she spoke.
The People called Dr. Anthony Urquiza as an expert on CSAAS. We will discuss
Dr. Urquiza’s testimony in sections II and III infra.
Defendant testified at the trial. He denied committing the charged offenses. He
agreed the minor sat on his lap and he sometimes rubbed the minor’s back, upper chest,
stomach, or legs. But he did not think there was anything inappropriate about those acts.
Although he viewed pornography on his computer, he never did so when his children
were around and he never looked at child pornography. Defendant denied ever watching
pornography with the minor, getting aroused when he rubbed her, taking photographs of
her while she was naked, using a massager on her, masturbating in front of her, or
ejaculating on her. He denied ever telling the minor’s mother he found prepubescent
girls attractive. He did not recognize People’s exhibit 16 and did not know who took that
photograph. He installed Evidence Eliminator on his computer for his sign business, not
to erase child pornography or inappropriate photographs of the minor. Defendant could
not think of any reason why the minor would accuse him of sexual abuse.
The jury convicted defendant on 12 counts of lewd and lascivious acts with a child
under the age of 14 years (Pen. Code, § 288, subd. (a) -- counts one through 12),2
2 Undesignated statutory references are to the Penal Code.
5
three counts of lewd and lascivious acts with a child who was 14 years of age (§ 288,
subd. (c)(1) -- counts 13 through 15), and one count of using a minor to perform
prohibited acts (§ 311.4, subd. (c) -- count 16). The trial court sentenced defendant to an
aggregate prison term of 30 years eight months.
DISCUSSION
I
Defendant contends the trial court erred in admitting uncharged sexual conduct
evidence, namely, that several years ago defendant possessed child pornography and said
he was attracted to prepubescent girls. Defendant claims that, on its face, Evidence Code
section 1108, which authorizes the admission of other sexual offense evidence, violates
his constitutional right to due process of law. He argues his alleged admission that he
found prepubescent girls attractive is not admissible under Evidence Code section 1108
because the statement is not a sexual offense, and his trial counsel rendered ineffective
assistance by failing to challenge the admissibility of his alleged statement. He also
contends the uncharged sexual conduct evidence is inadmissible under Evidence Code
section 352.
A
The People moved in limine to admit evidence that the mother saw defendant
looking at child pornography on his computer, and that defendant admitted he found
prepubescent girls attractive. The People sought to admit the evidence under Evidence
Code section 1101, subdivision (b) to show intent, and under Evidence Code
section 1108 to show defendant’s propensity to commit sexual offenses like those
charged in this case and that defendant committed the charged offenses.
The trial court conducted an evidentiary hearing to decide the People’s motion.
The mother testified at that hearing that she may have lied to police about seeing child
pornography on defendant’s computer and about defendant admitting he found
prepubescent girls attractive. She claimed she was distraught and wanted defendant to
6
“rot in jail for the rest of his life” when she made her statements to police. The mother
said she still loved defendant and wanted him to go home.
The prosecutor played audio recordings of the statements the mother provided to
police. The mother identified her voice on the audio recordings. In one recorded
interview, the mother said she saw defendant looking at “child porn” on his computer.
She knew what she saw was “child porn” because what she saw made her uncomfortable.
The images she saw were of naked “pre-puberty” girls, that is, girls who looked like they
were eight to 10 years old who “were not developed.” In another recorded interview, the
mother said she confronted defendant about seeing child pornography on his computer
and defendant did not deny it. The mother again described the images she saw as images
of naked “pre-puberty” girls. She specified the girls in the images had not started to
develop breasts and had no pubic hair. The mother said defendant told her he found girls
that age attractive. The mother said the girls in the images were around the minor’s age
and younger.
After hearing argument from counsel, the trial court ruled the proffered evidence
was admissible under Evidence Code section 1108, but not under Evidence Code
section 1101, subdivision (b).
B
Defendant argues that on its face, Evidence Code section 1108 violates the due
process clause of the United States Constitution. Defendant did not raise the due process
claim in the trial court, but even if it is not forfeited, the claim lacks merit. The
California Supreme Court has rejected a due process challenge to Evidence Code
section 1108, holding that a trial court’s discretion to exclude propensity evidence under
Evidence Code section 352 saves Evidence Code section 1108 from a due process
challenge. (People v. Falsetta (1999) 21 Cal.4th 903, 915-919 (Falsetta); see People v.
Wilson (2008) 44 Cal.4th 758, 796-797.)
7
Defendant acknowledges this court is bound by the Supreme Court’s decision, but
states he “offers the present analysis to preserve his ability to take his challenge to a
higher court if need be.” We follow Falsetta and reject defendant’s claim. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C
Defendant also contends his alleged statement that he found prepubescent girls
attractive is not admissible under Evidence Code section 1108 because the alleged
statement is not a sexual offense.
The People argued in the trial court that defendant committed the uncharged crime
of possession of child pornography in violation of section 311.11. That statute prohibits
the knowing possession or control of “any matter . . . that contains or incorporates in any
manner, any film or filmstrip, the production of which involves the use of a person under
18 years of age, knowing that the matter depicts a person under 18 years of age
personally engaging in or simulating sexual conduct.” (§ 311.11, subd. (a).) “ ‘Sexual
conduct’ means any of the following, whether actual or simulated: sexual intercourse,
oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual
sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of
sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section
288, or excretory functions performed in a lewd or lascivious manner, whether or not any
of the above conduct is performed alone or between members of the same or opposite sex
or between humans and animals. An act is simulated when it gives the appearance of
being sexual conduct.” (§ 311.4, subd. (d).)
On appeal the Attorney General argues defendant’s alleged admission was offered
to show defendant knowingly possessed child pornography; the admission was not
offered as “stand alone propensity evidence.” The Attorney General points out that the
trial court’s uncharged conduct instructions referenced the crime of possession of child
8
pornography only. The trial court did not instruct the jury on an uncharged offense with
regard to defendant’s alleged admission.
Defendant forfeited his appellate claim by not raising it in the trial court. (Evid.
Code, § 353, subd. (a); People v. Miramontes (2010) 189 Cal.App.4th 1085, 1099;
People v. Pierce (2002) 104 Cal.App.4th 893, 898.) Notwithstanding forfeiture, we agree
with the Attorney General on the merits of defendant’s claim. Defendant’s alleged
statement that he found young girls attractive was not offered as a sexual offense separate
from possession of child pornography. Defendant’s alleged statement is probative of
whether defendant knowingly possessed images of nude prepubescent girls and whether
the images were for the purpose of sexual stimulation of the viewer. We do not consider
defendant’s ineffective assistance of counsel claim because we considered the merits of
his claim that his alleged statement is not a sexual offense and concluded there is no
error.
D
Defendant further argues that the trial court abused its discretion in admitting the
uncharged sexual conduct evidence under Evidence Code section 352.
In general, evidence of a defendant’s conduct other than what is currently charged
is not admissible to prove that the defendant has a criminal disposition or propensity.
(Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) But as we
have explained, in a case where the defendant is charged with a sexual offense, Evidence
Code section 1108 authorizes the admission of evidence of the defendant’s other sexual
offenses if the evidence is not inadmissible under Evidence Code section 352.
In enacting Evidence Code section 1108, the Legislature recognized “ ‘sex crimes
are usually committed in seclusion without third party witnesses or substantial
corroborating evidence. The ensuing trial[, thus,] often presents conflicting versions of
the event and requires the trier of fact to make difficult credibility determinations.’ ”
(People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164; Falsetta, supra, 21 Cal.4th at
9
p. 911.) Evidence Code section 1108 allows the trier of fact to consider uncharged sexual
conduct evidence as evidence of the defendant’s propensity to commit sexual offenses in
evaluating the defendant’s and the victim’s credibility and in deciding whether the
defendant committed the charged sexual offense. (Villatoro, supra, 54 Cal.4th at
pp. 1160, 1164, 1166-1167; Falsetta, supra, 21 Cal.4th at pp. 911-912, 922.)
However, uncharged sexual conduct evidence is inadmissible if the probative
value of the evidence is substantially outweighed by the probability that its admission
will necessitate undue consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 352, 1108,
subd. (a).) The probative value of uncharged sexual conduct evidence is increased by the
relative similarity between the charged and uncharged offenses, the close proximity
between the uncharged and charged acts, and the independent sources of evidence in each
offense. (Falsetta, supra, 21 Cal.4th at p. 917.) The prejudicial impact of uncharged
sexual conduct evidence is reduced if the uncharged act resulted in a criminal conviction
and a substantial prison term, ensuring that the jury would not be tempted to convict the
defendant simply to punish him for the uncharged act, and that the jury’s attention would
not be diverted by having to determine whether defendant committed the uncharged act.
(Ibid.) We review a trial court’s Evidence Code section 352 determination under the
deferential abuse of discretion standard. (People v. Avila (2014) 59 Cal.4th 496, 515
(Avila).)
Defendant says evidence that he looked at child pornography had no probative
value because the mother’s description was too generalized to permit any conclusion
about the exact content of the images she saw, and labeling the images as child
pornography in the absence of the actual images was highly inflammatory. Defendant
appears to challenge the trial court’s preliminary determination that the mother’s
statements to police were sufficient for a jury to find, by a preponderance of the evidence,
that defendant committed a sexual offense.
10
A “ ‘[trial] court should exclude the proffered evidence only if the “showing of
preliminary facts is too weak to support a favorable determination by the jury.” ’ ”
(People v. Jandres (2014) 226 Cal.App.4th 340, 353.) We review the trial court’s
determination of this preliminary fact for abuse of discretion. (Ibid.)
The prosecutor had the burden to prove the uncharged section 311.11 violation by
a preponderance of the evidence. (People v. Cottone (2013) 57 Cal.4th 269, 286-287;
People v. Reliford (2003) 29 Cal.4th 1007, 1015-1016.) Preponderance of evidence
means the evidence on one side has more convincing force than that opposed to it.
(People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567;
see People v. Williams (1920) 184 Cal. 590, 594 [preponderance means evidence on one
side “ ‘outweighs, preponderates over, is more than, the evidence on the other side, not
necessarily in number of witnesses or quantity, but in its effect on those to whom it is
addressed’ ”].)
The trial court said the mother’s testimony at the evidentiary hearing was
confusing in that she said she could not remember what she saw and what defendant said.
The trial court concluded, however, the fairest implication from the evidence was the
mother made her statements to police before she had time to reflect and fabricate. The
trial court said it would be up to the jury to decide what to make of the mother’s
testimony. The trial court impliedly ruled a jury could reasonably find that the mother’s
statements to police were credible and that such statements proved by a preponderance of
the evidence that defendant violated section 311.11. Based on our review of the record,
we cannot say the proffered evidence was too weak to support a jury finding, by a
preponderance of the evidence, that defendant violated section 311.11. We find no error
in this regard.
We also conclude defendant fails to demonstrate error under Evidence Code
section 352. Evidence that defendant knowingly possessed images of naked young girls
and that he found those girls attractive had some tendency in reason to show that
11
defendant was predisposed to engage in the charged sexual offenses. (Avila, supra,
59 Cal.4th at p. 519 [evidence that the defendant possessed child pornography was
probative of his intent to commit lewd acts on the minor]; People v. Memro (1995)
11 Cal.4th 786, 864-865, abrogated on a different ground in People v. McKinnon (2011)
52 Cal.4th 610, 638-639, fn. 18 [possession of child pornography was admissible to show
the defendant had a sexual attraction to young boys and intended to act on that
attraction]; People v. Yovanov (1999) 69 Cal.App.4th 392, 404-405 [possession of
pornographic magazines containing articles about fathers having sex with their daughters
indicated the defendant’s continuing interest in deviant sexual activity].) To establish the
count one through 15 charges of lewd and lascivious acts with the minor, the People had
to prove defendant committed prohibited acts with the intent of arousing, appealing to, or
gratifying his or the minor’s lust, passions, or sexual desires. (§ 288, subds. (a), (c).) To
establish the count 16 charge, the People had to prove defendant knowingly used the
minor to pose for a photograph involving sexual conduct, such as the exhibition of the
genitals or pubic or rectal area for the purpose of the viewer’s sexual stimulation.
(§ 311.4, subd. (c).) Defendant’s commission of the uncharged section 311.11 offense is
probative of whether defendant possessed the requisite lewd intent in counts one through
15 and, with regard to count 16, whether he posed the minor for a prohibited sexual
purpose. (Avila, supra, 59 Cal.4th at p. 519; Memro, supra, 11 Cal.4th at pp. 864-865.)
The charged and uncharged acts involve sexual interest in young girls or sexual
gratification from conduct involving such girls. The similarity between the charged and
uncharged offenses is a factor for the trial court to consider in weighing the probative
value and prejudicial impact of the uncharged conduct evidence. (Falsetta, supra,
21 Cal.4th at p. 917; People v. Robertson (2012) 208 Cal.App.4th 965, 991 (Robertson).)
Evidence of the uncharged offense is also probative because defendant denied
engaging in any sexual acts with the minor. At trial, defendant’s counsel accused the
minor of lying. He argued the minor’s behavior did not indicate she had been sexually
12
abused. He pointed out inconsistencies in the minor’s reports concerning molestation.
He also argued there was no semen evidence, no trace of the photographs the minor said
defendant took of her, and no corroborating witness. Uncharged sexual offense evidence
is highly probative where the defendant denies the charged offense occurred and there is
no forensic evidence proving the charged offense occurred. (Robertson, supra,
208 Cal.App.4th at p. 993; People v. Hollie (2010) 180 Cal.App.4th 1262, 1275;
People v. Waples (2000) 79 Cal.App.4th 1389, 1395 (Waples).)
Defendant argues the uncharged act is not similar to the charged offenses because
the minor was not a prepubescent girl when defendant allegedly molested her. Defendant
cites the minor’s testimony that he began to molest her when she was 11 years old, and
the molestation continued until she was 15 years old. However, defendant fails to cite the
portion of the record supporting his conclusion about when the minor reached puberty.
We will not consider claims made without citation to the record. (People v. Myles (2012)
53 Cal.4th 1181, 1222, fn. 14 (Myles); Miller v. Superior Court (2002) 101 Cal.App.4th
728, 743.)
Defendant further claims, in summary fashion, that the uncharged conduct is
remote in time. Defendant forfeited the claim by failing to develop it with analysis and
citation to authority. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v.
Galambos (2002) 104 Cal.App.4th 1147, 1159.) Were we to consider the claim on its
merits, we could not say the uncharged conduct (which occurred approximately 11 years
prior to trial and about five years before defendant began to inappropriately touch the
minor) is too remote or the gap between the uncharged act and the beginning of the
charged conduct is so significant as to reduce the probative value of the uncharged
conduct evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [uncharged act occurred
12 years prior to trial]; People v. Branch (2001) 91 Cal.App.4th 274, 278, 281, 284
[uncharged sexual acts committed over 30 years before the charged offenses occurred
were properly admitted under Evidence Code sections 1101 and 1108]; Waples, supra,
13
79 Cal.App.4th at pp. 1392-1393, 1395 [uncharged sexual acts that occurred 18 to 25
years before the charged offenses were not too remote for purposes of Evidence Code
section 352]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 990-992 [uncharged
sexual conduct that occurred 20 to 30 years before the trial were properly admitted under
Evidence Code sections 1108 and 352].)
Defendant did not argue in the trial court that the uncharged conduct evidence is
unduly prejudicial because he was not convicted of that conduct. Thus, the trial court did
not address whether the lack of a conviction for the uncharged conduct would unduly
prejudice defendant. The claim is forfeited. (People v. Abel (2012) 53 Cal.4th 891, 924
[“ ‘What is important is that the objection fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the objecting party believes the
evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.’ ”].)
Nonetheless, we would reject the claim on its merits. We found nothing in the
record showing the jury was made aware of or considered the lack of a conviction for the
uncharged offense. The prosecutor and defense counsel’s closing argument discussions
about the uncharged conduct evidence do not refer to whether defendant was prosecuted
or punished for the uncharged act. Additionally, the trial court instructed the jury on the
limited use of uncharged conduct evidence. The trial court also instructed the jury on the
elements of each charged offense, and said the People must prove each charge beyond a
reasonable doubt and the uncharged conduct evidence does not, by itself, prove defendant
was guilty of the charged offenses. As instructed, the jury was not permitted to convict
defendant of the current charges simply because he previously committed a sexual
offense. The instructions counterbalanced any risk the jury might punish defendant for
his uncharged act. (Falsetta, supra, 21 Cal.4th at p. 920; People v. Frazier (2001)
89 Cal.App.4th 30, 42.)
14
Defendant has not demonstrated that the trial court abused its discretion in
admitting the uncharged sexual conduct evidence.
II
Defendant next contends the trial court erred in admitting Dr. Urquiza’s testimony
concerning CSAAS.
A
Defendant moved in limine to exclude the proposed testimony of Dr. Urquiza
under Evidence Code section 352. Defendant argued Dr. Urquiza’s proposed testimony
would not assist the jury because CSAAS was a “very vague theory” and victims
exhibited different symptoms. Defendant said it was up to the jury, not Dr. Urquiza, to
determine whether the minor was credible and whether defendant molested the minor.
Defendant also argued Dr. Urquiza’s proposed testimony was not relevant because
CSAAS was based on cases where corroborative evidence was present, but there was no
corroborative evidence in this case.
The People countered that Dr. Urquiza’s proposed testimony would give the jury
tools to understand whether the minor was credible. The People offered Dr. Urquiza’s
testimony to dispel myths that child sexual abuse victims disclosed the abuse
immediately and did not continue to love their abuser.
The trial court admitted Dr. Urquiza’s testimony. It said the doctor’s testimony
would help the jury understand why the minor did not disclose the abuse for a long time
and why she professed feelings of love for her abuser. The trial court subsequently
instructed the jury, pursuant to CALCRIM No. 1193, that Dr. Urquiza’s testimony about
CSAAS was not evidence that defendant committed any of the charged crimes. The trial
court told the jury to consider Dr. Urquiza’s testimony only for the purpose of deciding
whether the minor’s conduct was not inconsistent with the conduct of someone who had
been molested, and in evaluating the minor’s credibility.
15
The jury heard the testimony of the minor and her mother before hearing from Dr.
Urquiza. The minor and her mother’s testimonies showed the minor waited four years
before disclosing that defendant had sexually abused her. The minor testified she still
loved defendant even though he had molested her. The mother testified, on cross-
examination, that the minor never seemed uncomfortable or fearful with defendant, and
the minor did not use the lock on her bedroom door. The mother said she doubted the
minor’s allegations of sexual abuse because the minor enjoyed spending time with
defendant, always hugged defendant, and wanted to sit next to him on the couch.
Dr. Urquiza explained CSAAS was a tool developed to educate therapists about
common characteristics of children who had been sexually abused. Dr. Urquiza clarified
that CSAAS was not a test or diagnostic tool to determine whether a child had in fact
been molested. He said CSAAS assumed a child had been sexually abused.
Dr. Urquiza described the five parts of CSAAS: secrecy, helplessness, entrapment
and accommodation, delayed and unconvincing disclosure, and retraction. He said a
child sexual abuse victim may not report the abuse for a variety of reasons, including
feelings of shame and fear of losing the affection the abuser provided. Dr. Urquiza
explained it was not uncommon for a child sexual abuse victim to love her abuser despite
the abuse.
Dr. Urquiza told the jury research showed a child sexual abuse victim typically did
not protect herself from abuse when the abuser was someone with whom the victim had
an ongoing relationship. And it was a myth that a child sexual abuse victim will take
measures to protect herself.
With regard to accommodation, Dr. Urquiza explained some children coped with
sexual abuse by disengaging from their feelings. Those children described their
experience of being sexually abused without emotion or with a flat affect.
With regard to delayed and unconvincing disclosure, Dr. Urquiza said it was
common for a child sexual abuse victim to delay reporting the abuse for a significant
16
period of time, and a child victim usually disclosed later if she lived in the same house as
the abuser. Dr. Urquiza further explained that child victims sometimes provided vague
and brief accounts initially, and then gave more details when they felt more comfortable
about disclosing. Dr. Urquiza also said it was a myth that children wanted to remember
what happened to them and, thus, remembered details about their abuse. He said children
typically had difficulty remembering the frequency, duration, and details of an act,
especially if an act happened many times and they kept the abuse secret.
With regard to recantation, Dr. Urquiza said research showed 20 to 25 percent of
children who disclosed later recanted, and a child sexual abuse victim may recant because
of family pressure or because the child still loved the abuser.
B
Evidence Code section 801, subdivision (a), permits the introduction of testimony
by a qualified expert when that testimony is related to a subject that is sufficiently beyond
common experience that the opinion of the expert would assist the trier of fact. “ ‘[T]he
admissibility of expert opinion is a question of degree. The jury need not be wholly
ignorant of the subject matter of the opinion in order to justify its admission; if that were
the test, little expert opinion testimony would ever be heard. Instead, the statute declares
that even if the jury has some knowledge of the matter, expert opinion may be admitted
whenever it would ‘assist’ the jury. It will be excluded only when it would add nothing
at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one
of such common knowledge that men of ordinary education could reach a conclusion as
intelligently as the witness.” ’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300
(McAlpin).) We review a trial court’s decision to admit expert testimony for abuse of
discretion. (Id. at p. 1299; People v. Wells (2004) 118 Cal.App.4th 179, 186.)
This and other Courts of Appeal have concluded that although inadmissible to
show that a child has been sexually abused, CSAAS evidence is admissible for the
limited purpose of dispelling misconceptions about how child victims react to sexual
17
abuse. (People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez); In re S.C. (2006)
138 Cal.App.4th 396, 418; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino);
People v. Housley (1992) 6 Cal.App.4th 947, 954-957 (Housley); People v. Harlan
(1990) 222 Cal.App.3d 439, 449-450; People v. Bowker (1988) 203 Cal.App.3d 385,
391-392 (Bowker) [setting forth limitations on the admission of CSAAS evidence];
People v. Gray (1986) 187 Cal.App.3d 213, 217-218 (Gray).) “ ‘Such expert testimony
is needed to disabuse jurors of commonly held misconceptions about child sexual abuse,
and to explain the emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (McAlpin, supra, 53 Cal.3d at p. 1301.) The California Supreme Court in
McAlpin, supra, 53 Cal.3d 1289 and People v. Brown (2004) 33 Cal.4th 892 (Brown)
approved Bowker, supra, 203 Cal.App.3d 385 and other cases permitting limited
admissibility of CSAAS evidence. (Brown, supra, 33 Cal.4th at pp. 905-907; McAlpin,
supra, 53 Cal.3d at pp. 1301-1302.)
Defendant does not contend the trial court admitted CSAAS evidence outside the
bounds articulated in Bowker. Instead, he argues CSAAS evidence is not admissible
because the premise underlying its admissibility -- that people commonly believe certain
myths about child sexual abuse -- is no longer valid. Defendant claims intense media
discussion about child sexual assault cases has rendered the subjects addressed by
CSAAS within the common knowledge of the typical juror; thus, CSAAS is no longer the
proper subject of expert opinion testimony. Defendant also claims CSAAS is junk
science and is not generally accepted in the relevant scientific community as a diagnostic
tool for making child sexual abuse determinations.
Defendant fails to cite any portion of the record supporting his assertions that
misconceptions about child sexual abuse and child sexual abuse victims no longer exist,
that the subjects CSAAS addresses are sufficiently within common experience that expert
opinion would not assist the trier of fact, or that CSAAS is junk science. For this reason,
we need not consider his claims. (Myles, supra, 53 Cal.4th at p. 1222, fn. 14; Miller v.
18
Superior Court, supra, 101 Cal.App.4th at p. 743) Additionally, defendant did not raise
the claims he urges on appeal in the trial court. He did not, therefore, preserve the claims
for appellate review. (Evid. Code, § 353, subd. (a); People v. Seijas (2005) 36 Cal.4th
291, 302.)
In any event, we found no evidence in the record supporting defendant’s
assertions. To the contrary, Dr. Urquiza testified people he talked to in his work still did
not understand the common characteristics exhibited by victims of child sexual abuse.
For example, most people did not understand why a child sexual abuse victim may love
her abuser. Dr. Urquiza opined that sexual abuse cases receiving media attention did not
educate the public about the experience of child sexual abuse victims.
Moreover, the California Supreme Court has recognized that CSAAS expert
testimony is needed to disabuse jurors of commonly held misconceptions about child
sexual abuse. (Brown, supra, 33 Cal.4th at pp. 905-906.) This court recognized the same
need in People v. Sandoval (2008) 164 Cal.App.4th 994 and In re S.C., supra,
138 Cal.App.4th 396. And in 2010, the Sixth District Court of Appeal rejected claims
nearly identical to those defendant raises in this case. (Perez, supra, 182 Cal.App.4th at
pp. 243-245; see Gray, supra, 187 Cal.App.3d at p. 220 [“ ‘[T]he subject of child
molestation and more particularly, the sensitivities of the victims, is knowledge
sufficiently beyond common experience such that the opinion of an expert would be of
assistance to the trier of fact.’ ”].)
Defendant relies principally on Commonwealth v. Dunkle (1992) 529 Pa. 168
[602 A.2d 830] (Dunkle) to argue CSAAS has not gained general acceptance in the
scientific community, is not probative, and does not deal with subjects beyond common
experience such as to justify expert opinion testimony.3 More than 20 years ago, Dunkle
3 The Dunkle court described CSAAS as “an attempt to construct a diagnostic or
behavioral profile about sexually abused children.” (Dunkle, supra, 602 A.2d at p. 832.)
19
held that expert testimony concerning typical behavior patterns exhibited by sexually
abused children is inadmissible because such evidence was not generally accepted in the
field in which it belonged, was not probative of child sexual abuse, and concerned
subjects which were within the range of common experience. (Id. at pp. 834-838.)
We do not follow Dunkle for a number of reasons. Effective August 28, 2012,
Pennsylvania permits expert testimony that will assist the trier of fact in understanding
victim responses to sexual violence and the impact of sexual violence on victims during
and after being assaulted. (42 Pa.C.S.§ 5920, subd. (b).) It remains to be seen whether
CSAAS evidence is admissible in Pennsylvania under the new statute. Additionally, as
an out-of-state case, Dunkle is not binding on us. (People v. Troyer (2011) 51 Cal.4th
599, 610.) More importantly, the California Supreme Court’s approval of Bowker and
McAlpin in Brown, supra, 33 Cal.4th 892, implicitly rejected the opinion expressed in
Dunkle that CSAAS evidence is inadmissible. We adhere to the Supreme Court’s view
that CSAAS expert testimony is admissible. (Brown, supra, 33 Cal.4th at pp. 905-906.)
People v. Robbie (2001) 92 Cal.App.4th 1075, another case defendant cites, deals
with profile evidence, in particular testimony about the conduct and characteristics of
those who commit a certain type of rape. (Id. at pp. 1084-1085.) Robbie does not discuss
CSAAS evidence or the misconceptions relating to child sexual abuse victims.
We also found no evidence in the record that CSAAS is junk science and has been
rejected by the scientific community or its creator Dr. Roland Summit. Dr. Urquiza
testified there was a lot of research supporting CSAAS. Dr. Urquiza said four individuals
wrote two published articles criticizing the unconvincing disclosure and retraction aspects
of CSAAS. The doctor did not testify that CSAAS had been rejected in the scientific
community or by Dr. Summit. Defendant did not present in the trial court any of the
Contrary to the understanding of the Dunkle court, Dr. Urquiza testified CSAAS was not
a diagnostic tool for identifying a child sexual abuse victim.
20
journal articles he cites in his appellate opening brief. With regard to whether CSAAS is
generally accepted as a diagnostic tool for making child sexual abuse determinations, Dr.
Urquiza clearly stated CSAAS was not a diagnostic tool for determining whether a child
had been sexually abused. And the doctor said he did not know the defendant and the
alleged victim in this case and was not giving an opinion about whether anyone was
sexually abused.
It appears defendant raises a federal due process claim, although he does not
clearly articulate the basis for that claim. We understand defendant to contend that the
admission of CSAAS evidence violated his right to due process of law and a fair trial
because that evidence is not relevant to the charged offenses. We reject such claim.
CSAAS evidence is relevant to the minor’s credibility, which defendant vigorously
challenged at the trial. (McAlpin, supra, 53 Cal.3d at p. 1302; In re S.C., supra,
138 Cal.App.4th at p. 418; Patino, supra, 26 Cal.App.4th at p. 1745.) The admission of
relevant evidence does not violate a defendant’s due process rights. (Estelle v. McGuire
(1991) 502 U.S. 62, 68-70 [116 L.Ed.2d 385, 396-397]; Patino, supra, 26 Cal.App.4th at
p. 1747.) The limited admissibility of CSAAS expert testimony is well-settled. (In re
S.C., supra, 138 Cal.App.4th at p. 418; Housley, supra, 6 Cal.App.4th at p. 957.) And
defendant has not shown how the admission of CSAAS evidence in this case infringed
upon his constitutional right to due process of law or a fair trial.
Defendant also argues his trial counsel was ineffective in not raising a due process
claim. We do not address defendant’s ineffective assistance of counsel claim because he
has not shown the trial court erred in admitting CSAAS expert testimony.
III
Defendant further argues the hypothetical question the prosecutor posed to Dr.
Urquiza, which mirrors the facts in this case, and the doctor’s answer to that question
improperly implied the minor had been sexually abused. Defendant says his trial
counsel’s failure to object to the prosecutor’s question was ineffective assistance.
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A
The prosecutor gave Dr. Urquiza the following hypothetical and asked the doctor
to give his opinion as to whether the behavior in the hypothetical was common or unusual
behavior for a victim of child sexual abuse: “We had an 11-year-old girl who had been
molested for four years at the hands of the only father she’s ever really known, not a
biological father, but the only father she’s ever known. [¶] At the age of 15, discloses
that she’s been abused regularly for the past four years, maintains that she still loves her
father very much, wants to see him home, doesn’t recant, but tells us that her mother has
actually been very supportive of her and has always told her to tell the truth, and comes in
and testifies with little emotion. [¶] Is that uncommon for a victim of child sexual
abuse?” Defendant’s trial counsel did not object to the prosecutor’s question.
Dr. Urquiza responded that CSAAS relates to common characteristics, not
characteristics that occur in every single case. He said the hypothetical contained a lot of
the common characteristics: secrecy (not disclosing for four years), helplessness (an
ongoing relationship with someone who was bigger and stronger, and flat affect as a way
to manage the victim’s feelings), and delayed disclosure. Dr. Urquiza clarified he was
not saying someone was abused. He said he did not know who the alleged victim was,
did not know anything about this case, had never met defendant, and was not at trial to
provide any opinion as to whether anyone in that case had been sexually abused.
B
It is improper for an expert to apply CSAAS to the facts of the case and conclude a
particular child was molested. (Bowker, supra, 203 Cal.App.3d at p. 393.) It is also
improper for an expert to testify about CSAAS in a manner that directly coincides with
the facts of the case. (Id. at p. 394; Gray, supra, 187 Cal.App.3d at p. 218; People v.
Roscoe (1985) 168 Cal.App.3d 1093, 1100 [expert testimony must be limited to a
discussion of victims as a class; the expert must not discuss the witness in the case].) It is
22
error to admit a CSAAS expert’s response to hypothetical questions that closely track the
facts of the case. (People v. Jeff (1988) 204 Cal.App.3d 309, 337-339.)
We agree with defendant that the prosecutor’s hypothetical question was
improper. However, we conclude no prejudice resulted therefrom because it is not
reasonably probable a verdict more favorable to the defendant would have resulted in the
absence of the inadmissible evidence. (People v. Bledsoe (1984) 36 Cal.3d 236, 252
[applying People v. Watson (1956) 46 Cal.2d 818 standard of review to erroneous
admission of expert testimony]; Bowker, supra, 203 Cal.App.3d at p. 395 [same].) The
jury could not have reasonably understood from Dr. Urquiza’s response to the
prosecutor’s hypothetical that the minor was sexually abused. The trial court instructed
the jury that Dr. Urquiza’s testimony was not evidence that defendant committed any of
the charged crimes. The doctor testified he did not know the alleged victim, he did not
treat her, and he was not rendering an opinion about whether someone was sexually
abused. Not knowing who the alleged victim in this case was and not knowing the facts
of this case, Dr. Urquiza said he had no basis for rendering an opinion about whether the
alleged victim was sexually abused. Dr. Urquiza also told the jury CSAAS was not a
diagnostic tool to determine whether a child had in fact been molested. The prosecutor’s
closing argument repeated that Dr. Urquiza’s testimony was not presented for the purpose
of determining whether or not the minor had been sexually abused.
Under these circumstances, the jury could not reasonably understand that Dr.
Urquiza was providing an opinion about whether the minor was sexually abused.
Improper admission of evidence is not reversible error absent a demonstration of
prejudice. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside, or new trial
granted, in any cause, on the ground of misdirection of the jury, or of the improper
admission or rejection of evidence . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.”]; Evid. Code, § 353.)
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We need not consider defendant’s related ineffective assistance of counsel claim
because we conclude the erroneous admission of evidence did not result in prejudice to
defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 [to establish trial counsel was
ineffective, the defendant must prove trial counsel’s deficient representation resulted in
prejudice to the defendant]; Strickland v. Washington (1984) 466 U.S. 668, 687
[80 L.Ed.2d 674, 692-693].)
DISPOSITION
The judgment is affirmed.
/S/
Mauro, J.
We concur:
/S/
Raye, P. J.
/S/
Hull, J.
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